Snell & Wilmer
Global Connection
 

     

February 18, 2020

Dear Friend of Snell & Wilmer:

Disruptive forces continue to sweep the global economy, but not all change is bad. This edition of Global Connection highlights some of the recent developments in international trade law and how companies may benefit from them.

Specifically, this issue discusses (i) how companies can deal with the uncertainty of the ever-changing U.S. tariff policy toward China and the EU, (ii) the new DOJ guidelines for a no-fine, no-prosecution presumption for self-disclosures of willful violations of the major export and sanctions regime, (iii) the recent boost to business relationships between companies in Arizona and Alberta, Canada with the addition of Arizona to the Alberta Reciprocal Enforcement of Judgments Act, and (iv) an overview of the financing process of real estate projects in Los Cabos, Mexico, to name a few of the articles in this newsletter.

We hope you enjoy the articles and that they prove useful in your business dealings. We welcome your suggestions for future editions, and if would like to be included in future international events hosted by the firm, please feel free to contact us.

Best regards,

Brett W. Johnson and Patricia Brum
Co-Editors

BREXIT’s impact on applicability of General Data Protection Regulations (GDPR)

By Sarah S. Anand and Aloke S. Chakravarty

As the United Kingdom (UK) rapidly approaches a potential exit (BREXIT) from the European Union (EU), confusion abounds as to the applicability of the revolutionary data privacy rules of the EU’s General Data Protection Regulation (GDPR). In today’s digital economy, this is especially so for entities that move information to and from the UK after an exit from the EU. The consequences of BREXIT depend in large part upon whether there is a deal that the UK brokers with the EU, or whether there is a crash or a no-deal exit. In either circumstance, compliance with the norms and standards established by the GDPR is likely to be protected from regulatory consequences either by the UK’s Information Commissioner’s Office (ICO) or the GDPR’s Data Protection Authorities (DPA).

If the UK exits the EU with or without a deal, a transition period will be in effect until the end of 2020. Under UK law, data protection is presently governed by the GDPR. Though the GDPR will no longer be legally binding when the UK exits, the UK has indicated that it is committed to maintaining an equivalent data protection regime following departure. The legal mechanisms for this regime will likely be established through the EU (Withdrawal) Act of 2019 and the UK’s Data Protection Act of 2018, which is also referenced as the UK GDPR. The data protection culture in the UK has steadily grown accustomed to GDPR standards, and we expect that these norms will continue unless expressly abrogated.

If there is no deal, the transfer of data from the UK to a “third country” may be restricted depending on the data protection standards of that country. The government of the UK has made clear that after an exit, there is no domestic intention to restrict the transfer of personal data from the UK to the EU. The predictability of such open two-way transfer, however, will only be evident if, under Article 45 of the GDPR, the EU Commission decides that the UK ensures an adequate level of data protection. Despite this posture, the EU has not indicated that transfers from the EU to the UK will be adequately secure. Without a ruling by the EU Commission, those who are transferring data from the EU will need to adopt the safeguards that are commended in the GDPR, which consist of Standard Contractual Clauses (SCCs), Binding Corporate Rules (BCRs) which are approved by the EU, or specific additional UK data protection measures which may be needed to satisfy the EU. If an entity is transferring information between the EU and the UK post-BREXIT, the onus is on the entity that is transferring the personal information, and we recommend a more detailed analysis to identify the legally appropriate strategy.

If there is a withdrawal agreement, we expect that:

  • The GDPR and related EU privacy laws will continue to apply to the UK during the transition;
  • The UK will likely continue to interpret the GDPR and related EU laws consistent with existing legal principles;
  • References in the GDPR to “Member States” could be understood to include the UK. This means that the UK would not be subject to restrictions on data transfers to “third countries” under the GDPR during the transition period, and references to the GDPR that predate BREXIT could be interpreted as including the UK;
  • EU would be expected to apply GDPR in a way that does not discriminate against the UK;
  • The GDPR will continue to apply within the UK as EU law during the transition period. Whether this will apply after the transition period will depend on developing laws and data protection measures. If an adequacy decision is obtained from the EU, then this protection will be extended.

To summarize, data transfers in a “No Deal” Brexit could depend on the circumstances: 

  • UK -> US [Transfer mechanism needed, but existing arrangements are ok]
  • UK -> EU [No transfer mechanism needed and GDPR restrictions do not apply]
  • EU -> UK [Transfer mechanism needed]
  • UK -> non-EU, non-US [Transfer mechanism needed, but existing arrangements are ok]

In a “Deal” BREXIT situation, compliance with the GDPR will likely continue after the UK leaves the EU. 

 

SB1447 Reciprocal Foreign Country Money Judgements -  
What This Means for Relations Between Arizona and Alberta, Canada

By Gabrielle M. Morlock and Lowell E. Thomas

I. Arizona and Alberta, Canada Using SB 1447 to Enhance Cooperative Relationship.

In 2015, Senate Bill 1447 (“SB 1447”) was approved and signed into law by Arizona Governor Doug Ducey. SB 1447 was enacted to provide reciprocal enforcement of money judgements in foreign countries where such country has adopted or enacted a similar reciprocal law.

To take advantage of the bill, the foreign country money judgement must be final, conclusive and enforceable. Further, SB 1447 does not apply to foreign judgements involving taxes, fines and penalties, foreign judgements involving divorce or domestic relations, where the foreign country has not adopted a reciprocal money judgement law, where the foreign country does not provide for impartial tribunals, and where the foreign court does not have personal jurisdiction over the defendant or subject matter jurisdiction, among other requirements.

While SB 1447 applies to all foreign countries (as defined in Arizona Revised Statue 12-2151), it provides great significance to Arizona’s relations with Alberta, Canada in particular. In May 2019, delegates from Arizona visited Alberta to attend a three-day trade mission to meet certain companies in the area that were interested in expanding their business into Arizona. In September 2019, the Canadian administration of Alberta Premier Jason Kenney added Arizona to the Alberta Reciprocal Enforcement of Judgements Act. In October, Arizona and the Canadian Province of Alberta formally established an agreement for reciprocity enforcement of money judgments in line with SB 1447.

With Canada being the largest source of foreign direct investment in Arizona and with over $3.6 billion in trade between the two, SB 1447 fosters continued growth amongst the territories. This particularly helps build relationships with lenders and those companies that have assets and property that can be used as collateral. The relationship between Arizona and Alberta now allows for a more cohesive structure in dealing with loan agreements, employment, agency and partnership agreements, and purchase and sale agreements pertaining to real property.

By Arizona enacting SB 1447 and Alberta adding Arizona to its Reciprocal Enforcement of Judgements Act, lenders are now more willing to provide loans to Arizona and Canadian businesses to which the collateral is in Alberta. Due to the new streamlined process and reciprocity between Arizona and Alberta, lending institutions can now collect on securitized loans more easily and at a lower cost than previously allowed. This change will enhance the lending industry and provide for greater growth in trade and business dealings between Arizona and Alberta.

II. The Reciprocal Foreign Country Money Judgements Process in Arizona.

Assuming that the reciprocating country has jurisdiction, is within the statute of limitations and is not violating any common law in the other jurisdiction (among other requirements), Arizona can enforce monetary judgments at a much more expedited rate with far greater efficiency than ever before.

In Arizona, the process is simple. You begin by filing an application to register the Canadian foreign judgment. You must include an authenticated copy of the foreign judgment from the foreign court with the Arizona clerk’s office. You must also include an affidavit to substantiate the Canadian foreign judgment, file a notice of filing and a cover sheet, among other documents. Once the judgement is filed you can record the judgment as a lien on any property owned by the debtor and begin the collections process.

While the process is much easier, many foreign judgements get denied in Arizona for common reasons, such as Arizona not having jurisdiction over the debtor or the subject matter, or when the debtor did not receive notice. Therefore, it is important to ensure that your monetary judgment falls under the requirements of SB1447 and proper steps are taken during the filing process.

 

Financing Real Estate Projects in Los Cabos, Mexico

By Carlos Freaner and Jorge E. Fragoso

The development of real estate projects, including hotels and master planned communities in Los Cabos and other places in Mexico, commonly requires financing by banks and other institutional lenders. This article presents an overview of some key aspects that cross-border lenders should consider when lending and taking security in Mexico.

General

The main parties to a real estate loan transaction in Mexico are the lender and the borrower. There may be more than one of each and also one or more guarantors. The lender typically takes security over real property by way of a security trust or a mortgage and may also require taking security over the borrower’s shares or equity interests through a security trust or pledge. Personal property, including accounts receivable, intellectual property, equipment and inventory are often encumbered through a security trust or non-possessory pledge. While Mexico does not have a general usury statute, the Mexican courts have found some exorbitant interest rates to amount to usury and have resolved to reduce the corresponding interest based on several factors. As a general rule, lenders are not required to be registered or licensed by any governmental entity in Mexico to lend to local borrowers or to take security in Mexico. Further, there are currently no exchange controls in Mexico and payments of interest to foreign lenders are generally subject to withholding tax at a rate that generally varies from 4.9 percent to 35 percent.

Basic Loan Documentation

Loans are evidenced by a loan agreement with standard provisions, including representations and warranties by the borrower, affirmative and negative covenants and the events of default that authorize the lender to demand payment of the loan and foreclose against security or take other enforcement action. In cross-border loans involving U.S.-based lenders, the loan agreement is often governed by the laws of New York or California. Each drawdown is normally documented by means of a promissory note (pagaré) governed by Mexican law, which in case of default allows a lender to initiate a commercial summary proceeding against the borrower and seek the attachment of assets under such expedited procedure. The Mexico collateral documents must be governed by Mexican law and must comply with local formalities, including notarization and recordation.

Mortgage vs. Security Trust

Under either a mortgage or a security trust, the borrower typically retains the right to possess, use and operate the real property while the loan is not in default. The borrower also usually maintains the ability to sign contracts for the sale of units or lots being developed subject to certain approvals from the lender. The mortgage or security trust will identify events of default consistent with those specified in the loan agreement and will describe the actions the lender may take after default, including the right to foreclose on the collateral through the procedures contemplated by law.

One of the principal differences between a mortgage and a security trust is the foreclosure mechanism in case of default. A mortgage is enforced through a special mortgage procedure followed before the courts of the jurisdiction where the real property is located, and this procedure can take several months especially if the borrower challenges the foreclosure. In contrast, under a security trust, the lender has the option to foreclose through a non-judicial procedure under which the trustee —a Mexican financial institution— can sell the property through an out-of-court auction. Another significant difference is that in case of insolvency of the borrower, under a mortgage the encumbered assets continue to be owned by the borrower and the lender is deemed a secured creditor with priority over other creditors subject to limited exceptions. In a security trust, in turn, title to the collateral is actually conveyed by the borrower to the trustee and, thus, in case of insolvency of the borrower, the collateral does not form part of the borrower’s estate.

Recording, Fees, Costs and Expenses

A mortgage or security trust must be notarized and recorded with the local public property registry. Notary fees and recordation dues vary from state to state and are often expensive and calculated as a percentage of the secured obligations subject to a cap on recordation dues in some states. There are no documentary taxes or stamp duties in Mexico and acquisition taxes and value added taxes are assessed upon foreclosure.

Upstream Guarantees

The provision of security by a Mexican subsidiary of a borrower should be carefully structured to ensure that the subsidiary receives a corporate benefit or adequate consideration, otherwise the security can be considered void in case of insolvency.

Enforcement of Foreign Judgments

A foreign judgment is enforceable in Mexico if it meets a number of substantive and procedural requirements, including that the judgment is final and non-appealable, that the judgment does not contravene public policy of Mexico and that the defendant is properly served. Service of process by mail is not recognized in Mexico and might defeat enforcing a judgment. A lender typically requires a borrower to appoint a U.S.-based process agent to receive notices under the loan documents and to grant an irrevocable power of attorney to such process agent for said purposes.

Foreclosure Remarks

Finally, it is worth noting that self-help remedies, like taking ownership of collateral in lieu of foreclosure without following the applicable statutory judicial or non-judicial procedure, are generally not enforceable in Mexico as a result of constitutional due process rights.

 

Federal Court Rescinds $2 Million OFAC Penalty Against Exxon: Lessons Learned in Seeking Guidance for International Transactions

By Michael Calvanico

On New Year’s Eve, a federal court relieved ExxonMobil of a $2 million fine levied against the company by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”).[1] OFAC imposed the penalty against Exxon for its violation of Ukraine-related sanctions through oil development deals with Russian petroleum company Rosneft. In lifting the penalty determination, the district court found that Exxon was not given fair notice regarding the policies’ details. Although Exxon eventually escaped a sizable penalty, this case still serves as a cautionary tale. Companies engaging in international trade should seek guidance to interpret agency regulations or risk significant fees, whether they result from agency penalties or the costs of eventual litigation.

As way of background, in March 2014, President Barack Obama issued an Executive Order sanctioning Russia for the country’s deployment of military forces in Ukraine.[2] The Order authorized the Secretary of the Treasury to promulgate applicable regulations, including the designation of Specially Designated Nationals (“SDNs”) whose property would be “blocked” based on their ties to the Russian government. Under Section 4 of the Order, the prohibitions “include . . . the receipt of any contribution or provision of . . . services” from a specified individual.

In May 2014, Exxon executed several contracts with Rosneft. Each of these contracts was signed by Sechin, the President and Chairman of Rosneft’s Management Board. Although Rosneft was not specifically targeted by the sanctions, Sechin was a recognized SDN. After Exxon entered into these contracts, OFAC issued specific guidance that the sanctions prohibited transactions with SDNs even if the individual is acting on behalf of a non-blocked entity. OFAC investigated and eventually imposed the $2 million civil penalty based on Exxon’s contracts with Rosneft. Exxon challenged OFAC’s penalty, claiming that Exxon had not received fair notice of OFAC’s interpretation concerning the regulations.

District Judge Jane Boyle agreed with Exxon, ruling that the government provided too little detail about whether Exxon’s contracts with Rosneft violated the sanctions at the time they were executed. The court reasoned that according to the plain text of the regulations, it was unclear whether Sechin signing the contracts was a “receipt of services” by Exxon. The Court found that the text failed to address whether a receipt of services included any incidental receipt of a benefit resulting from a SDN’s services, or if receipt was limited to when a SDN’s services are specifically aimed at benefiting a U.S. person. Of particular note to the court was the fact that OFAC updated their guidance after clarifying that conduct like Exxon’s was prohibited after issuing Exxon’s penalty.

Importantly, the Court did consider the fact that Exxon failed to seek clarification from OFAC before completing the transaction. The court specifically weighed this factor against Exxon in the fair notice determination, but ultimately held that the burden of providing fair notice remains with the agency. The court specifically stated that “[t]hough the regulations and public statements, taken together, would likely lead a regulated party, acting in good faith, to hesitate before completing transactions like Exxon’s, they do not create ascertainable certainty that such conduct would be prohibited.” Nevertheless, the court’s decision raises uncertainty in dealing with unclear regulations in developing strategy for companies moving forward.

After years of litigation, Exxon escaped their $2 million penalty. But, the costs of having to respond to an OFAC inquiry can be staggering. Unfortunately, due to expedited timelines and uncertainty concerning established foreign policy, regulations related to international trade can be confusing, contradictory (especially when dealing with multiple agencies that may have jurisdiction), and extremely frustrating.

Although the courts may put significant onus on the governmental agencies to ensure transparency, it is still a subjective analysis as to whether the government properly complied. If it does, then the burden shifts to the company. So, when in doubt and although it may delay a transaction, businesses should consider seeking guidance or, if possible, advisory opinions from regulatory agencies related to international transaction to clarify misunderstandings. Furthermore, businesses should not wait until the transaction is being negotiated to determine potential regulatory impacts. Instead, new regulations should be integrated to existing company policies and procedures. When updated, key stakeholders must be adequately trained about the changes. If the changes are going to impact potential business opportunities, initiating the analysis and starting potential license application process early can avoid significant operational issues.

_______________
Note:
[1] Exxon Mobil Corporation v. Mnuchin, No. 3:17-cv-01930 (N.D. Tex. Dec. 31, 2019). [back]
[2] Exec. Order No. 13660, 79 Fed. Reg. 13,493 (Mar. 6, 2014). President Obama expanded Executive Order 13660 through the issuance of Executive Order 13661. Exec. Order No. 13661, 79 Fed. Reg. 15,535 (Mar. 16, 2014). Both orders are available at https://obamawhitehouse.archives.gov/the-press-office/2014/03/06/executive-order-blocking-property-certain-persons-contributing-situation and https://obamawhitehouse.archives.gov/the-press-office/2014/03/17/executive-order-blocking-property-additional-persons-contributing-situat respectively. [back]

 

Trade (Un)Certainty in 2020: U.S. Tariff Policy Toward China and the EU

By Brett W. Johnson and Derek C. Flint

As 2020 begins, U.S. tariff policy toward China and the European Union (EU) is moving in different directions, with significant implications for U.S. companies. Beginning with China, the U.S. has gradually implemented tariffs on four “lists” of Chinese goods since July 2018.[1] But on December 13, 2019, the two countries announced a Phase One agreement that partially resolves their trade dispute. Although the Phase One agreement itself—which covers intellectual property, technology transfer, trade in certain products, macroeconomic policy and financial services—does not reduce U.S. tariff rates, the U.S. canceled a new set of tariffs on $160 billion in Chinese goods that would have taken effect on December 15, 2019. With regard to existing tariffs, the United States Trade Representative (USTR) stated that “[t]he United States will be maintaining 25 percent tariffs on approximately $250 billion of Chinese imports, along with 7.5 percent tariffs on approximately $120 billion of Chinese imports.” Although most tariffs are still in place and obstacles to reaching a more comprehensive agreement remain, trade relations between the U.S. and China appear to be improving.

The opposite is true with regard to the EU. In October 2019, the USTR implemented a wave of new tariffs on approximately $7.5 billion dollars in imports from the EU in response to the World Trade Organization’s (WTO) ruling in the Airbus subsidies case. In that case, the WTO ruled that the EU had been providing illegal subsidies to Airbus, causing Boeing to lose sales and market share. The tariffs target certain categories of goods, including large civil aircraft, dairy, meat and seafood, alcohol, and textiles, among others. Large civil aircraft are subject to a 10 percent tariff increase, while other products are subject to a 25 percent tariff increase. A full list of the categories of goods subject to the new tariffs can be found here. Thus far, the U.S.-EU trade dispute shows no signs of abating, with the U.S. now considering duties of up to 100 percent on certain EU products.

In light of these changes in U.S. tariff policy, the first question for companies that import goods from China or the EU is whether their goods are affected by the new tariff rates. To answer this question, companies can consult the Harmonized Tariff Schedule (HTS). If goods are subject to an increased tariff rate, companies may want to determine whether they can reclassify their goods under an HTS classification that is not subject to the increased rate. Companies interested in reclassifying their goods can seek a formal classification determination from U.S. Customs and Border Protection.

If reclassifying goods is not possible, companies may want to consider seeking exclusions from the tariffs. The USTR has not indicated whether it will permit exclusions for EU products. However, the USTR has granted a number of exclusions for each list of Chinese goods subject to the tariffs. Companies can no longer seek new exclusions from tariff lists 1–3, but may seek exclusions from list 4 tariffs until January 31, 2020. To determine whether an existing exclusion applies or whether to seek a new exclusion, companies should consult a legal professional.

Companies that are unable to avoid tariffs through reclassifications or exclusions may want to consider alternative ways to mitigate the risks and costs associated with these two trade disputes. One option is to shift supply chains away from countries impacted by these disputes. Another is to revise shipping terms to permanently shift the increased tariffs to Chinese or EU manufacturers. This generally involves a revision to a new INCOTERM 2010 term that requires the foreign manufacturer to bear all shipping costs, including freight, insurance, and export and import duties. For a full array of the options available to manage the risks associated with current trade disputes, companies should consult a legal professional.

_______________
Note:
[1] Brett W. Johnson & Derek Flint, Understanding the 2018 U.S. Tariffs on Chinese Goods: Developing a Game Plan, SNELL & WILMER (Oct. 15, 2018), https://www.swlaw.com/publications/legal-alerts/2562.[back]

 

No Prosecution, No Fine Presumption for Companies that Voluntarily Self Disclose Potentially Willful Violations of Export and Sanctions Laws

By Ian Joyce

On December 13, 2019, the Department of Justice (DOJ) updated its enforcement guidelines to include a no-fine, no-prosecution presumption for companies that voluntarily self-disclose potentially willful violations of the major export and sanctions regime (the Arms Export Control Act, the Export Control Reform Act, and the International Emergency Economic Powers Act).[1] The presumption does not apply where aggravating factors are present. However, as discussed below, the policy affords companies that voluntarily self-discloses benefits even when the presumption does not apply. 

This policy supersedes the 2016 DOJ update on the same issue, which only gave disclosing companies a “credit” in the event they self-disclosed.[2] And the guidance update builds on a September 2015 DOJ policy memo that instructed the department to hold individuals responsible for corporate wrongdoing.[3]

A. Requirements to Receive the Presumption

In order to receive the presumption, the disclosure must qualify as a “voluntary self-disclosure,” the company must “fully cooperate” with DOJ, and must “timely and appropriately remediate” any violation. In addition, the disclosure must be made to the DOJ’s Counterintelligence and Export Control Section, instead of a regulatory agency or other part of the DOJ.

“Voluntary self-disclosure,” “full cooperation,” and “timely and appropriate remediation” are terms of art used in other DOJ self-disclosure regimes.[4] The definitions of the requirements, as defined in the 2019 update, are set out below:

  • Voluntary Self-Disclosure: There are three requirements for a disclosure to qualify as a “voluntary self-disclosure.” First, the disclosure must be made prior to an imminent threat of disclosure or government investigation. Second, disclosure must be made within a reasonably prompt time after the company becomes aware of the offense. Finally, the disclosure must include all relevant facts, including any individuals substantially involved.
  • Full Cooperation: Similarly, in order to “fully cooperate” a company’s disclosure must be timely, continuously updated, include all relevant information, and attribute facts to specific sources. In addition, the disclosing company must preserve all relevant documentation, deconflict witnesses and make employees who possess relevant knowledge available for interviews. The disclosing company need not violate the attorney-client privilege or the work product doctrine to meet this definition.
  • Timely and Appropriate Remediation: Finally, to “timely and appropriately remediate” violation, the disclosing company must analyze the root cause of the problem and remediate it where possible, implement a compliance program, discipline employees involved in the violation, retain all appropriate business records and take “additional steps that demonstrate recognition of the seriousness of the company’s misconduct.”

If a company’s disclosures satisfy the above three requirements it will receive the no-prosecution/no-fine presumption absent aggravating factors.

B. Aggravating Factors and Benefits of Disclosure Beyond the Presumption

The 2019 guidance provides a non-exhaustive list of potential aggravating factors. Two factors are most relevant to corporate clients: repeated violations and knowing involvement of upper management in the criminal conduct.[5] The 2016 guidance, though technically superseded, also identified “significant profits from the criminal conduct” as an aggravating factor.

A company that satisfies the self-disclosure requirements outlined above, however, will receive benefits even if the presumption does not apply due to aggravating factors. In the event a company self-discloses, the DOJ will recommend a fine that is at least 50 percent less than the amount available under the alternative fine provision found in 18 U.S.C. § 3571(d). In addition, the DOJ will not require the appointment of a monitor if the company implements an effective compliance program by the time of resolution.

C. Drawbacks

There are some potential drawbacks to self-disclosure. The DOJ focuses on individual accountability for corporate wrongdoing. Self-disclosing violations directly to the DOJ, therefore, may increase the likelihood of individual criminal prosecution.[6] Similarly, a company that self discloses violations directly to DOJ, as opposed to a regulatory agency, may expose itself to more liability than it would otherwise face.[7] (Regulatory agencies being less likely to refer matters to the DOJ). Finally, if a company self-reports a violation, this admission of potential guilt may make it difficult for the company to later claim the action was in fact lawful.[8]

Notwithstanding these concerns, however, the benefit of a no-prosecution/no-fine presumption or the alternative recommended fine reduction is obvious. Any company that discovers a violation of the major export or sanctions statutes should seriously consider voluntary self-disclosure.

_______________
Note:
[1] Export Control and Sanctions Enforcement Policy for Business Organizations, DEPT. OF JUSTICE (Dec. 13, 2019) available at https://www.justice.gov/nsd/ces_vsd_policy_2019/download. [back]
[2] Guidance Regarding Voluntary Self-Disclosures, Cooperation, and Remediation in Export Control and Sanctions Investigations Involving Business Organizations, DEPT. OF JUSTICE (Oct. 2, 2016) available at http://files.constantcontact.com/4545a8d7301/6536ffe2-60e6-451c-991a-6c6f6c1cdb17.pdf?ver=1476300088000 [back]
[3] See Individual Accountability for Corporate Wrongdoing, DEPT. OF JUSTICE MEMORANDUM, Sally Yates (Sept. 9, 2015). [back]
[4] For example, the self-reporting guidelines for violations of the Foreign Corrupt Practices Act contain the same terms. FCPA Corporate Enforcement Policy, available at https://www.justice.gov/criminal-fraud/file/838416/download; see also Department of Justice Revises and Re-Issues Export Control and Sanctions Enforcement Policy for Business Organizations, DEPT. OF JUSTICE (Dec. 13, 2009) (noting that “the VSD Policy was drafted to more closely resemble existing and analogous guidance from other DOJ components in an effort to standardize, to the extent possible, DOJ voluntary disclosure policies.”) [back]
[5] The remaining listed aggravating factors include: exports of items controlled for nuclear nonproliferation or missile technology reasons to a proliferator country; exports of items that can be used in the construction of weapons of mass destruction; exports to a Foreign Terrorist Organization or Specially Designated Global Terrorist; and exports of military items to a hostile foreign power. [back]
[6] DOJ’s Revised Self-Disclosure Policy for US Trade Sanctions and Export Control Violations Offers ‘Concreate and Significant’ Benefits for Corporations, ARNOLD & PORTER (Dec. 19, 2019), available at https://www.arnoldporter.com/en/perspectives/publications/2019/12/dojs-revised-self-disclosure. [back]
[7] Id. [back]
[8] Department of Justice Publishes Guidance on Voluntary Self-Disclosure of Export Controls and Sanctions Violations, SIDLEY AUSTIN (Nov. 10, 2016), available at https://www.sidley.com/en/insights/newsupdates/2016/11/doj-publishes-guidance-on-self-disclosure[back]

 

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